Appeal from judgment of Court of Common Pleas of Montgomery County, June T., 1971, No. 378, in case of Commonwealth of Pennsylvania v. Abraham Shapiro.
Arthur L. Jenkins, Jr. and Smith, Aker, Grossman, Hollinger and Jenkins, for appellant.
J. David Bean and Stewart J. Greenleaf, Assistant District Attorneys, William T. Nicholas, First Assistant District Attorney, and Milton O. Moss, District Attorney, for Commonwealth, appellee.
Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Packel, JJ. Opinion by Hoffman, J. Wright, P. J., Watkins and Spaulding, JJ., dissent.
[ 223 Pa. Super. Page 17]
Appellant contends that his shoplifting conviction should be reversed because the Commonwealth's evidence was insufficient to establish that appellant possessed the requisite intent needed for conviction.
The appellant was charged with shoplifting a box of bushings from the Sears and Roebuck department store in Norristown.
When a verdict of guilty is rendered, the court, in determining whether or not to set aside the conviction, must review all the evidence in the light most favorable to the prosecution which by reason of the verdict, is entitled to all reasonable inferences arising therefrom. Commonwealth v. Tabb, 417 Pa. 13, 207 A.2d 884 (1965); Commonwealth v. Moore, 398 Pa. 198, 157 A.2d 65 (1959). A conviction, however, will not be sustained unless the facts prove all the requisite elements of the crime beyond a reasonable doubt. Commonwealth v. Zimmerman, 214 Pa. Superior Ct. 61, 251 A.2d 819 (1969).
In order to convict an individual of shoplifting, the Commonwealth must establish that the accused wilfully took possession of the goods in question with the intent of converting these goods to his own use without paying the purchase price. June 24, 1939, P. L. 872, § 816.1, added July 5, 1957, P. L. 501, § 1; as amended December 30, 1959, P. L. 2062, § 1; as amended November 10, 1965, P. L. 707, § 2; November 30, 1967, P. L. 663, § 1; July 31, 1968, No. 285, § 1 (18 P.S. § 4816.1). An intent to convert is presumed to exist when the goods are found concealed on the person of
[ 223 Pa. Super. Page 18]
the accused. "The finding of such unpurchased goods or merchandise concealed, upon the person or among the belongings of such person, shall be prima facie evidence of wilful concealment." 18 P.S. § 4816.1. (emphasis added.) Thus, the element of intent is normally provided by the circumstantial evidence of finding the goods concealed on the party. "Where conviction must be based on circumstantial evidence . . ., the theme of guilt must flow from the facts and circumstances and be consistent with them all." Commonwealth v. Zimmerman, supra; Commonwealth v. Clinton, 391 Pa. 212, 137 A.2d 463 (1958).
In the instant case, the Commonwealth's evidence does not establish that the appellant possessed the intent needed to commit the offense. Although the element of intent is presumed to exist where the accused has concealed the item in question, the presumption cannot be applied herein because the box of bushings allegedly taken was in plain view. The testimony is as follows: Defense Attorney: "Q. All right. Was it your opinion at the time that he was hiding this box?" Sears & Roebuck Security Manager: "A. It looked to me like the way he was carrying it with the bag on the outside and the bushing box between the bag and his trousers, it looked to me like he was trying to conceal it, yes. Q. But during that thirty or forty-minute period, you didn't stop him and ask him for a receipt, did you? A. No, I did not, because as far as I was concerned, at that time he was still shopping in that department, and I was just observing him. As long as I could see the template box, I wasn't worrying about it. Q. You could see the template box, couldn't you? A. (Witness nodded head)" (emphasis added).
Neither does the remainder of the evidence establish beyond a reasonable doubt that appellant possessed the requisite ...